Sunday, February 11, 2007

Here's a studio audience question for you: Gun control. I don't know enough to have a reliable opinion on the subject, so if it's worth a blog posting, I'd love to hear how you approach the topic.

Thomas

The Constitutional Question

Debates on gun control have to take into consideration the Second Amendment to the Constitution

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed

Now, on the Constitutional question, there are a number of things that deserve mention.

Interpretation

Imagine a parent telling a child, “In order to keep you safe and healthy, you have to be home by 10:00 PM.” The child then comes home at 1:00 AM. When the parent begins to scold the child for breaking curfew, the child answers, “You said that the 10:00 curfew was to keep me safe and healthy. Your rule says that I can stay out as long as I want, as long as I do not do anything that is unsafe or unhealthy.”

That child would be grounded for the rest of his natural life (and then some).

The founding fathers said that the right to bear arms is justified because a well regulated militia is necessary to the security of a free state. A lot of people want to interpret this as saying that it is permissible to take away the right to bear arms whenever it does not violate the requirements of a well-regulated militia. This, as I understand it, is the same as the child saying that it is okay to stay out as long as he wants as long as he is not doing anything (that the child judges to be) unhealthy or unsafe.

The parents’ rule states, “Be home by 10:00”. The Bill of Rights states, “the right of the People to keep and bear arms shall not be infringed.” That’s the rule.

Agreement

I have noticed an amazing coincidence. For some strange reason, a huge portion of those who believe that gun control is a good idea also believe that the Constitution permits gun control. At the same time, a huge portion of those who believe that gun control is a bad idea also believe that the Constitution prohibits gun control.

There are extremely few people who believe that the Constitution prohibits gun control, even though gun control is a good idea; or who believe that the Constitution permits gun control even though gun control is a bad idea.

This suggests that there are an awful lot of people out there who are first deciding their view on gun control, and then endorsing whatever interpretation of the Constitution fits their conclusion.

Technically, this is the same type of thinking as deciding first whether one wants it to be the case that Saddam Hussein has weapons of mass destruction and helped in the 9/11 attacks, then looking at the evidence to support that conclusion. It is the same as deciding first whether it is economically useful to believe that human activity contributes to global warming then looking at the evidence and accepting only what supports that conclusion. It is the same as deciding that the Bible is literally true then accepting or rejecting scientific findings based on whether they are consistent with biblical claims.

And it happens on both sides of the debate. Neither can condemn the other.

The question of what the Constitution says, and one’s view of what it should say, are two different questions which can reasonably be expected to generate two different answers.

Good and Bad Law

Not everything that the Constitution says is worthy of our respect.

All we have to do to prove this is to remember that the Constitution once protected slavery, and counted African Americans as slaves worth three-fifths of a person for the sake of representation in Congress.

When writing the Bill of Rights, the founding fathers offered their opinion as to whether gun control was a good idea. They said that it was not. Elsewhere in the Constitution they offered their opinion on equal rights for blacks, and decided that this was not a good idea. In some things, the founding fathers were correct. In some things, they made a mistake. One of the questions that we have reason to ask is whether they made a mistake regarding gun control.

In this regard, we need to consider such things as the fact that the founding fathers probably never dreamed of a “musket” that can fire 100 rounds per second or a cannon that can lob a single cannon ball to the other side of the world and destroy a whole city. Even if they were right with respect to what counts as a good idea in an age of muskets, this does not imply that the same policy will work in an age of machine guns and missiles.

Considerations

Presumption of Liberty Argument

One argument that is relevant to the issue of gun control is the issue of a presumption of liberty. It is never the duty of those who argue in defense of freedom to explain why it is useful. If I wanted to walk to the store for some milk and bread, it is not my job to justify this action. Instead, it is the duty of those who argue that I should not be permitted to do so to make their case.

This argument is the same as the argument for the principle that an accused person is to be presumed innocent unless proven guilty. A love of freedom and an aversion to do harm suggest that we make an assumption in favor of innocence, and that we place the burden of proof on those who would have us do harm to prove that harm is deserved. Similarly, we should presume liberty, and put the burden of proof on those who argue that liberty must be infringed.

So, nobody needs to say a word in defense of the right to keep and bear arms. It is up to those who argue against such a right who must make their case.

The Personal Security Argument

One of the ways that they can make that case is by demonstrating (beyond reasonable doubt) that we will be more secure in a society that has gun control. If gun control means that one has a smaller chance of being maimed or killed, or of suffering the fate of somebody one loves being maimed or killed, then the aversion to being maimed or killed and concern for others are both “reasons for action” for gun control.

However, because the advocates of gun control need to overcome a burden of proof, it is not enough to argue that “it seems kinda make sense that gun control will protect innocent lives.” Those who advocate gun control do need actual proof.

I will admit at the start that I have not examined this specific issue in enough detail to know whether that proof is available. I cannot say one way or the other whether the case for gun control has been made.

The Defense from Tyranny Argument

One argument against gun control notes that the biggest threat to the liberty and security of the people has been their own governments. The Declaration of Independence states that we have certain rights to life, liberty, and the pursuit of happiness, and that “whenever any form of government becomes destructive of these ends it is the right of the people to alter or to abolish it.” The best defender of liberty has never been governments (who are the natural enemies of liberty) but the people themselves. Of course, for the people to protect their liberty from their own governments, they must have the means to do so.

The current Bush Administration, and events in Europe, create reason to question this argument. The Bush Administration has shown itself to be on a virtual rampage against the Bill of Rights and other principles of freedom that have protected us for 200 years. They have argued that the President has the right to engage in searches and seizures without a warrant, to arrest an individual without an indictment from a grand jury, to hold him without trial, to deprive people of life, liberty, and property without due process, to engage in cruel and unusual punishment, to throw out the doctrine of checks and balances by giving the Executive Branch the power to make law (through the use of signing statements) and to bypass judicial review.

Yet, those who have argued that gun control must be prohibited because it is necessary to protect the people from an abusive government are among the biggest defenders of this administration. In fact, if we look at history, this is no surprise. Throughout history, tyrants have been greeted with cheers. Alexander the Great, Caesar, Napoleon, and Hitler were not only autocratic dictators, they were also exceptionally popular.

A well armed population may be a poor defense against tyranny, particularly when those with the arms are those who are most likely to use them in defense of an administration that advocates tyranny.

The case of Europe and Japan also provide counter-arguments against the “preservation of liberty” option. Both regions have extensive gun control, and both regions seem to be under no threat of a tyrannical leader coming to power and depriving them of their freedoms. In fact, that threat seems far more real in the United States under the Bush Administration in a country without gun control, than in Europe and Japan.

So, again, the argument that a “right to bear arms” is necessary to the defense of liberty from tyranny appears to be weak. The evidence seems to suggest that if the people love liberty than they do not need to keep and arms to defend it from their own government, and if they do not love liberty, then having a right to keep and bear arms will do little good.

Conclusion

In this blog entry, I have given some considerations to be applied to the issue of gun control. That is, after all, what Thomas asked for – to hear how I would approach the topic.

These are the types of issues that I would address. However, I do not have the time to become a sufficiently qualified expert in this field to say that I know what the right answer is. Instead, on this issue, I would like to trust to the judgment of a qualified expert.

Personally, the approach that I would take would be the same approach that I took regarding the Iraq War strategy. I stated repeatedly that I do not have sufficient evidence to pass judgment, and that I would trust to experts to make that decision. When I read that the Join Chiefs of Staff and the Iraq Study Group both recommended withdraw, then I put my vote on the side of withdraw - and argued that Bush is an arrogant fool for putting his own judgment against the judgment of experts.

If there were a body who looked at the issue of gun control that I could trust to be experts and to be specifically concerned with doing the right thing, who studied the issue in detail, I would trust to their judgment.

6 comments:

First, imagine the parents said "since it's important for grade schoolers to get plenty of rest, curfew will be set at 8:00 P.M."

Surely the highschool children would have a case if they said, "clearly, the first clause of this rule implies that the rule it is meant to apply only to the grade schoolers, not to us."

Isn't it possible to make that same argument regarding the amendment; that it applies to militias? I haven't looked into this in a long while, but isn't that what the Supreme Court ruled?

I'm not saying this argument should carry the day. Afterall, it implies a fair bit of sloppiness on the part of the framers. They could have easily said "...the right of the Militia to keep and bear arms, shall not be infringed," just as the parents could have said "curfew for those under the age of 13 will be 8:00 P.M."

Second, the second amendment doesn't mention guns, it says "arms," which is a lot more broad. Arms infringment already exists. One cannot own nuclear weapons, "dirty" bombs, ICBMs, etc. I don't hear much complaining about that.

A law banning hand guns, for examle, would simply be adding one more to the list of controlled arms.

"The Bill of Rights states, “the right of the People to keep and bear arms shall not be infringed.” That’s the rule."

The Bill of Rights also states, "Congress shall make no law ... abridging the freedom of speech, or of the press..." Does this make libel, defamation, and incitement laws unconstitutional? Constitutional provisions against "cruel and unusual punishment" are fairly open-ended, allowing for a variety of interpretations. The phrase "no law" is quite absolute.

Is there any constitutional provision which is stated unambiguously and for which there are no exceptions made? I don't think so - jurists have found that on the outer edges, some exceptions have to be made in order to keep the peace and prevent harm. Libel causes harm. Incitement causes harm. Human sacrifices cause harm. If a clear link can be made between action X and harm, then it's hard to argue that you have an absolute constitutional right to do X.

Thayne's examples about the sorts of "arms" which are banned without argument fit here as well. Some arms are too dangerous to not restrict.

On a related issue, it is relevant to note that even the rule to be in by 10:00 has exceptions.

If the child comes it at 1:00 AM saying, "There was an accident. A car went through a red light and hit a motorcyclist, then sped off. I was the only one there. My cell phone doesn't work in that area so I sent another guy to get help and stayed with him until the ambulance arrived."

Or, "I was hiding from a would-be murderer."

These would be taken as legitimate excuses for breaking the rule to be home by 10:00.

However, "I was not doing anything unhealthy or dangerous" is not a legitimate excuse. It is still a fallacy to interpret the rule in a way that allows for this type of exception.

On a related issue, it is relevant to note that even the rule to be in by 10:00 has exceptions.

True, because that rule is given in a context that normally includes the assumption "extreme situations will change things." That's pretty much always the case when two rational people are working together and have verbal, casual agreements. If I promise to get you something, we both know that you won't hold me to it if something awful happens.

The Constitution is not such a thing. It's not quite a contract nor quite a law, but it shares qualities of both. If we have a signed contract which obligates me to bring you something, I can't justify being late because my mother is in the hospital unless I've got provisions for that written in somewhere. Ditto if the law is involved. With the Constitution, there's nothing in it that allows for "exceptions in extreme situations." There's nothing in it that tells you how to interpret it, either, so it's up to you to decide if you're going to adopt an absolutist / literalist approach or not.

What you choose will have significant consequences - like here, for example. If you adopt an absolutist stance, you have an easy conclusion with "no gun control, period" (it's not completely problem-free, but in most cases your course is pretty clear and simple). If you don't adopt such a stance, you have several hard arguments: justifying that stance, justifying where you draw your lines, and justifying what sorts of "gun control" are compatible with the 2nd amendment.

At no point will you be able to say "but the 2nd amendment prohibits eliminating the right to keep and bear arms" as a defense for where you draw your line. Literalists can do that, but not you. You have to use reason, common sense, evidence, statistics, etc. You have to go outside the Constitution to justify a position about what's constitutional and base it on non-constitutional information.

It's no coincidence that defenders of a more absolutist stance here also defend a more absolutist, religion-based morality. Such positions seem to make hard questions easier to answer, eliminating grey areas. If you and I agree that some restrictions on "arms" are valid, and that the 2nd amendment shouldn't be read in an absolutist manner, we're basically arguing over a huge grey area where there probably isn't any One Right Answer. That scares some people.

There is a simple, naturalistic 'bright' proof of the right to keep and bear arms. 1. We have a right to live (per the Declaration of Independence).2. Living requires self defense (because personal defense is *not* the government's job).3. Therefore we have a right to defend ourselves.4. Guns are the state of the art in self defense (and predators can always get them). The conclusion should be obvious (to those not drunk on the wine of pacifism).John Billings

About Me

When I was in high school, I decided that I wanted to leave the world better off than it would have been if I had not existed. This started a quest, through 12 years of college and on to today, to try to discover what a "better" world consists of. I have written a book describing that journey that you can find on my website. In this blog, I will keep track of the issues I have confronted since then.